Poletti v Jones [2015] NSWCA 107

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Poletti v Jones [2015] NSWCA 107 Hearing dates: 11 and 12 February 2015 Decision date: 27 April 2015 Before: Basten JA at [1]; Emmett JA at [83]; Leeming JA at [94] Decision: (1)Allow the appeal and set aside order (1) made by the trial judge on 4 June 2014.

(2)In place of the order for provision made below, order that each of Doriana Mary Jones and Patrizia Mary Caterina Becker have a 15% share of the net estate of the deceased, John Ubaldo Poletti, their respective debts to the estate having been extinguished.

(3)The provision provided under order (2) be provided out of the 85% share conferred by the testator's will on Mauro Giuseppe Poletti.

(4)With respect to the costs of the appeal, the costs of Mauro Giuseppe Poletti, Marco Poletti, Doriana Mary Jones and Patrizia Mary Caterina Becker are to be assessed on an indemnity basis and paid from the estate, provided that the costs incurred by Marco Poletti are limited to the costs of his motion and intervention by way of written submissions following the appeal, allowed in so far as they comply with the order for joinder made by this Court. Catchwords: APPEAL – procedure – appellant (beneficiary and executor) challenged order in favour of estranged daughters – appellant received bulk of the estate – remaining beneficiary not joined – application for joinder on appeal – intervener's interest under the will reduced by the provision so as to be less than the provision made to each daughter – intervener's needs similar to those of estranged daughters – whether provision order should be varied to allow equal shares